Sodas and power: A setback for the nanny state

March 12. 2013 4:50PMIn preparation for Mayor Michael Bloomberg's big- soda ban, New York City restaurant inspectors were issued 17-ounce cups, The New York Daily News reported on Sunday. Inspectors were to test whether restaurants were serving sugary sodas in containers that held more than 16 ounces. Such containers were banned in any "food service establishment" that offered a self-serve soda fountain. Thus New York City was to inch that much closer to becoming a police state so its citizens would be spared the abuse of being given the option of buying a soda one ounce larger than the mayor thought advisable.

This is the fate Judge Milton Tingling of the New York State Supreme Court spared the Big Apple when on Tuesday he struck down Bloomberg's soda ban. Judge Tingling noted that the soda ban was not a soda ban as much as it was a seemingly random (thus "arbitrary and capricious") ban on certain sizes of certain sodas sold at certain establishments - while allowing larger, less healthy beverages to be served unmolested at competing establishments or even in the same ones.

For example, the regulation forbade the serving of a 500 ml. (16.9 ounces) soda or energy drink at a movie theater, restaurant or stadium, but allowed the same drink to be sold at any convenience store. It forbade the serving of a 20-ounce soda at a deli or diner while allowing the same restaurant to sell a milkshake with more than three times the calories of a ?16-ounce soda.

Bloomberg pushed his soda dictate through his hand-picked board of health, not through the city council. Tingling sharply discerned that the board had the legal authority to issue emergency restrictions on individual behavior to contain outbreaks of communicable diseases, but it had no authority to use those emergency powers to prohibit people from buying particular sizes of otherwise legal beverages when there was no state of emergency.

This expansion of government's legitimate emergency powers for the purpose of controlling individual behaviors is characteristic of the nanny state. Tingling was shrewd enough to see that "obesity" is a matter of personal, not "public" health, and to strike down Bloomberg's power grab. Other judges in other places will not be so wise, which is why keeping nannies like Bloomberg out of office is essential to the protection of individual liberty.